FOIA Update: Significant New Decisions

January 1, 1993

FOIA Update Vol. XIV, No. 3 1993

Significant New Decisions

City of Va. Beach v. United States Dep't of Commerce, 995 F.2d 1247 (4th Cir. 1993).

In a factually complex Exemption 5 case applying the deliberative process privilege, the Fourth Circuit Court of Appeals has reemphasized that "the first task in undertaking FOIA review is to identify the full context within which the contested documents are generated." At issue were a report and related documents created at the prompting of the City of Virginia Beach, which had questioned the agency's opposition to the City's attempt to build a water pipeline from a distant reservoir. In addressing the privilege's "predecisional" requirement, the Fourth Circuit ruled that although the focus of the documents on a completed Corps of Engineers' permit proceeding "concededly look[s] backward," those documents are "retrospective explanations of past events only when they are impermissibly abstracted from the context of the [the agency's] ongoing development of its position on the pipeline" in a related proceeding before the Federal Energy Regulatory Commission. It concluded that the fact that the agency's documents were "responsive to the City's contentions regarding . . . the completed Corps proceedings simply does not establish that the agency would not rely on them in the pending FERC proceedings."

Church of Scientology Int'l v. IRS, 995 F.2d 916 (9th Cir. 1993).

Clarifying Exemption 7's law enforcement threshold requirement, the Ninth Circuit Court of Appeals reversed a district court decision by ruling that the activities of the Internal Revenue Service's Exempt Organization division have a law enforcement purpose. The Exempt Organization division performs "voluntary compliance and formal [administrative] determination functions" in deciding whether entities are eligible for the government benefit of tax exempt status," all of which are "accompanied by due procedure." Noting that it had previously held that the "IRS has the 'requisite law enforcement mandate' to qualify as a law enforcement agency," and finding that the division's activities have the "salient characteristics of law enforcement," the Ninth Circuit held that the division "performs a law enforcement function by enforcing the provisions of the federal tax code that relate to qualification for tax exempt status." Thus, the district court was ordered to determine on remand whether the documents, which concern the Scientology organization's attempt to obtain tax exempt status, were in fact compiled for law enforcement purposes.

In a procedural ruling invalidating the regulations of many federal agencies, the D.C. Circuit Court of Appeals has held that agencies may no longer require FOIA requesters to submit a notarized document attesting to their identity in order to obtain information about themselves, or by other individuals attesting that they have given consent to the disclosure of information otherwise withholdable under the privacy exemptions of the FOIA. Relying on Justice Department regulations designed to guard against unauthorized disclosure of personal information, the FBI had refused to accept a privacy waiver signed by the subject of a FOIA request made by author Anthony Summers. Rather than being notarized, the waiver he submitted was executed in accordance with the provisions of 28 U.S.C. § 1746, a federal statute which permits sworn statements signed under penalty of perjury to be used instead of a notarized statement. Rejecting the FBI's argument that § 1746 only mandated acceptance of the contents of unsworn statements, but did not obligate the FBI to accept unnotarized proof of the author's identity, the D.C. Circuit observed that "[s]ince an individual's identity would seem to be a 'matter' that FOIA requesters or third parties waiving privacy are asked to establish, the plain language of § 1746 instructs that a person may use an unsworn statement to establish that identity."

Army Times Pub. Co. v. Department of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993).

Suggesting that the Air Force was "cherry picking the materials to be made public," the D.C. Circuit Court of Appeals found that the results of surveys of Air Force personnel could not be withheld unless the agency could distinguish them from the survey results it had voluntarily disclosed in press releases. The requested records consisted of the results of telephone surveys of randomly selected military personnel in which each respondent was asked a series of questions about "working conditions within the Air Force, such as pay, bonuses, training and commissaries." Although the Air Force had previously released some results reflecting generally high satisfaction with various aspects of the base commissaries, it withheld most of the survey results under the deliberative process privilege of Exemption 5. Finding that the predecisional character of the records was "not in dispute" because they were used to "develop appropriate policies and determine how best to implement them" the Court focused on whether they were correctly characterized as "deliberative." While careful not to find that the Air Force had "'waived' its right to claim an exemption simply because it has released information similar to that requested," the D.C. Circuit found that "the fact that some of the information in the [disclosed] surveys is plainly factual and poses no threat to the agency's deliberative process suggests that other information in the surveys could also be released." It therefore remanded the case for a determination of whether such nonexempt information could be segregated and disclosed.

Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993).

In a decision involving the report which served as the basis for the Attorney General's exclusion from the United States of Kurt Waldheim, the D.C. Circuit Court of Appeals clarified several longstanding issues under Exemptions 5 and 7(A). At issue was the "Waldheim Report," which documented the wartime Na zi activities of the former SecretaryGeneral of the United Nations and former President of Austria. The D.C. Circuit began its deliberative process analysis by noting that the factual material in the report was "assembled through an exercise of judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action," much like that in Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974), rather than Playboy Enters., Inc. v. Department of Justice, 677 F.2d 931 (D.C. Cir. 1982), which involved an investigatory report produced only to inform. It then ruled that the deliberative process privilege was properly applicable to the entire report except for the chronology of Mr. Waldheim's military service, which it found to "reflect[] no point of view" because the "selection of the categories of facts . . . recorded in no way betrays the occasion that gave rise to its compilation."

Turning to Exemption 7(A), the D.C. Circuit held Exemption 7 to apply to records prepared for exclusion proceedings, even though in such proceedings the burden is on the excluded person to challenge the government's action, because "[r]egulatory actions . . . are often taken unilaterally by an agency and then subjected to the postdecisional scrutiny of a reviewing court." Focusing next on when an enforcement proceeding is "reasonably anticipated," it ruled that "a categorical approach is appropriate in determining the likelihood of enforcement proceedings in cases where an alien is excluded from entry into the United States because of his alleged participation in Nazi persecutions or genocide. Otherwise, we must exercise our faculties as mind readers." Accordingly, it found that the "critical question" is "not whether Mr. Waldheim is likely to appeal his listing, but whether, in the run of cases involving persons excluded from the United States . . . , there is a reasonable likelihood of challenge." Because "the prospect of such a challenge is not so unreasonable," it held "that in such cases and therefore in this one Exemption 7(A)'s requirement that enforcement proceedings be reasonably anticipated is met."

Applying the new Critical Mass distinction between "voluntary" and "required" submissions, the District Court for the District of New Jersey has held that documents concerning the submitter's appeal of its suspension from the IRS's electronic filing program were "voluntarily" submitted and thus entitled to protection under Exemption 4's new "customary treatment" standard. Although the submitter had been sent a letter regarding his right to appeal the suspension, the court found that "there was no mandate in the letter to submit any documents." Moreover, it held, "if the submission of the documents were obligatory, there would be a controlling statute, regulation or written order." Acknowledging that failure to submit the documents could have resulted in the submitter's license to file electronically being permanently revoked, the court did not regard that as making their submission "required." It rejected the requester's argument that submissions should be deemed "required" as "a matter of law" whenever a particular submission "benefits" the submitter, ruling that such an approach is "flawed because it relies too heavily on hindsight." The markings on the documents, a confidentiality agreement and a state court protective order all demonstrated that the documents were not customarily disclosed to the public.

Beck v. Department of Justice, 997 F.2d 1489 (D.C. Cir. 1993).

In an instructive decision about the nature of the "public interest" to be factored into the balancing tests of Exemptions 6 and 7(C), the D.C. Circuit Court of Appeals held that "[t]he identity of one or two relatively lowlevel government wrongdoers, released in isolation, does not provide information about the agency's own conduct" and, therefore, does not implicate a qualifying "public interest" under United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). The requester a convicted drug dealer had sought records of the Department's Office of Professional Responsibility regarding two DEA agents, whom the requester had accused of illegal activities in his investigation. In response, OPR refused to confirm or deny the existence of records. In upholding OPR's action under both Exemptions 6 and 7(C), the D.C. Circuit first rejected the argument that, before it could respond, OPR was required to search its files to determine whether or not there were records which contained "credible evidence" of wrongdoing on the part of the employees. It then distinguished Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984), by noting that this case did not involve high level officials whose activities "occurred against the backdrop of a well publicized scandal." Given the lack of a qualifying "public interest," the D.C. Circuit did not "linger" over the balancing test because it found that government employees have "at least some privacy interest in [their] own employment records . . . that extends to 'not having it known whether those records contain or do not contain' information on wrongdoing, whether . . . favorable or not."